The New York Stare Comptrollers Office recently issued Opinion 90-27
which stated that the town board of a town and the board of trustees
of a village located within the town ate authorized to establish
a joint fire district by resolution subject to a permissive referendum.
The members of the board of fire commissioners of a joint fire district
may be appointed by the town board and village board of trustees
or they may be elected pursuant to the provisions of Article 11 of
the Town Law.
The full text of Opinion 90-27 follows:
"This is in response to your inquiry concerning a proposal that the town
and the village within the town establish a joint fire district. You indicate
that the town is currently served by a single fire protection district encompassing
the area of the town outside the village and that the village wishes to discontinue
the operation of its fire department. You ask how the town and village may proceed
to establish a joint fire district. In addition. you ask whether the board or
tire commissioners of a joint fire district must be elected or whether they may
be appointed by the town board.
"Chapter 241 of the Laws of 1988 repealed Chapter 595 of the
Laws of 1938 and arnended the Town Law and the Village Law to provide
authority for the establishment of joint fire districts without petition.
Article 11-A of the Town Law (Section 189-a et seq.) and
Article 22-A of theVillage Law (Section 22-2210 et seq.)
provide the precedures for establishing, financing, and operating
joint fire districts within contiguous territory of one or more towns
arid one or more villages within those towns.
"Pursuant to Town Law, Secnon I 89-a(2)(a), if it appears to
be in the public interest. the town board and the village board shall
hold a joint meeting for the purpose of jointly proposing the establishment
of a joint fire district. The meeting must be held at a location
within the proposed district. If at the joint meeting, it is decided
by a joint vote of each board to propose a joint fire district, the
town board and the village board of trustees must, within 30 days
after the meeting, hold a joint public hearing at a location within
the proposed district (Town Law, Section 189-a[2][b]). Notice of
the hearing must be published at least once in a newspaper having
general circulation within the town arid village and posted in five
public conspicuous places within the area of the town outside the
village and five public conspicuous places in the village not less
than ten days before the date of the hearing. Also, notice must be
mailed to members of the town and village boards. The notice must
contain a brief description of the boundaries of the proposed district
arid of the objects and purposes for which the district is proposed
to be established, and must specify the time when and place where
the heariric will take place (Town Law, Section 189-a[2][b]).
"If. after the public hearing, the town board and the village
board of trustees determine that the establishment of the joint fire
district is in the public interest, 'subject to permissive referendum.
such town board and board of trustees shall. by resolution duly adopted
by a maionitv of each board, establish such joint fire district'
(Town Law, Section 189-a[2][c]), Section 189-a(2)(c) does not expressly
state that seperate referenda are to be held in the village and the
town (cf. Town Law, Section 206[9] relative to the consolidation
of special districts: General Municipal Law. Section 121-a, relative
to the formation of joint village and town police departments: NY
Constitution, Article 9, Section [1][h], relative to ceritain transfers
of functions or duties in a county with an alternative form of government).
However, given the joint fire district, we believe it follows that
the separate resolutions are subject to separate referenda.
"With respect to the procedures for these referenda, Article
7 of the Town Law (Section 90 et seq.). which governs the
conduct of referenda on petition in towns. is applicable '[w]henever
this chapter [the Town Law] shall expressly provide that an act or
resolution is subject to a permissive referendum . . .' (Town Law,
Section 90). Consequently, in accordance with Article 7, if a sufficient
petition is filed in a timely fashion. the town board's resolution
adopted under Article 11-A of the Town Law would have to be submitted
to the qualified electors of the 'district affected' (Town Law. Sections
91,92). In the instant situation, it is our opinion that the protection
district affected would be the area of town encompassing the fire
protection district (see e.g.. 1982 Opns St Comp Na. 82-149, p 189).
"Article 9 of the Village Law, which governs the conduct of
referenda on petition in villages, similarly provides that it shall
apply '[w]henever this chapter shall expressly provide that an act
or resolution of the board of trustees is subject to a permissive
referendum - . .' (Villagee Law, Section 9-900[1]). Section 22-2212
of the Village Law provides that. '[i]n all respects the provisions
of the town law shall apply to the establishment . . . of any joint
fire district provided for by this article.' Thus, since the Village
Law incorporates by reference the provision of Article 11-A, including
the permissive referendum requirements. we conclude that Article
9 of the Village Law prescribes the procedures for such referendum.
Therefore, the resolution of the village board of trustees establishing
the joint fire district would have to be approved by the affirmative
vote of a majority of the qualified electors of the village if a
sufficient petition requestint a referendum is filed with the village
clerk within the statutory period (Village Law. Section 9-902[l]).
"If the town board and village board determine that it is in
the public interest to establish the joint fire district, they shall,
by local law, dissolve the existing fire protection district (Town
Law, Section 189-0). In addition, the village board of trustees may,
by resolution, authorize the sale or transfer of the fire house and
fire equipment owned by the village to the joint fire district with
or without consideration unon such terms and conditions as they deem
proper (Town Law. Section 189-b).
"Once the joint fire district has been established, the property
and affairs of the district are under the management and control
of a board of fire commissioners which may have from three to seven
members (Town Law, Section 189-e). The Town Law. Section 189-c provides
that the board of commissioners may be appointed by the town board
and the village board of trustees in joint session or may he elected
in the manner provided in Article 11 of the Town Law. The determination
of whether the board of commissioners is appointed or elected is
made by the town and village boards 'by resolution adopted at the
meeting for the establishrnent of the district by the same manner
as the resolution for the establishment of the district was adopted'
(Town Law. Section 189-c). If the commissioners are appointed. Section
l89-e provides that where there is an even number of commissioners,
village residents mav not constitute more than half the board, and
where there is an odd number of commissioners, the number of village
residents on the board may not exceed the number or town residents
by more than one.
In summany the town board and the village board of trustees, acting
jointly, are authorized to establish a joint fire district encompassing
the entire town and the village pursuant to the procedures outlined
above. The members of the board of commissioners of the joint fire
district may be either elected in the manner provided in Article
11 of the Town Law or appointed by the town and village boaids in
joint session. as determined by resolution adopted at the meeting
for the establishment of the distnct.